Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries
January 18-19, 2013
UCLA School of Law

The American Constitution Society announces its upcoming conference, Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries, to take place January 18-19, 2013, at the UCLA School of Law. ACS is co-sponsoring the conference with the UCLA School of Law, the Williams Institute, the Yale Information Society Project, and the Program for the Study of Reproductive Justice. As we commemorate the anniversaries of two landmark Supreme Court decisions, Roe and Lawrence, the conference will bring together leading experts on gender and sexuality to analyze the past, situate current conflicts, and contemplate the future. The conference will feature panels on sexual freedom, constitutional frameworks, social movements, religious liberty, families, and information. Speakers will include:

Jack Balkin, Yale Law School
Kim Buchanan, University of Southern California Gould School of Law
Matt Coles, Center for Equality, ACLU
David Cruz, University of Southern California Gould School of Law
Jon Davidson, Lambda Legal
Ariela Dubler, Columbia Law School
Bill Eskridge, Yale Law School
Gary Gates, Williams Institute
Katherine Franke, Columbia Law School
Cary Franklin, University of Texas School of Law
Linda Greenhouse, Yale Law School
Nan Hunter, Georgetown Law Center
Dawn Johnsen, Indiana University Maurer School of Law
Kristin Luker, University of California, Berkeley
Maya Manian, University of San Francisco School of Law
Louise Melling, Center for Liberty, ACLU
Ilan Meyer, Williams Institute
Ali Miller, Yale Law School
Melissa Murray, Berkeley Law
Douglas NeJaime, Loyola Law School, Los Angeles
Priscilla Ocen, Loyola Law School, Los Angeles
Jennifer Pizer, Lambda Legal
Nancy Polikoff, American University Washington College of Law
Robert Post, Yale Law School
Reva Siegel, Yale Law School
Dean Spade, Seattle University School of Law
Geoffrey Stone, University of Chicago Law School
Eugene Volokh, UCLA School of Law
Adam Winkler, UCLA School of Law
Kenji Yoshino, NYU School of Law

Law students can register for the conference at no cost. Law students, please register here.

Registration for attorneys is $50. CLE will be offered and 6 credits can be earned. Attorneys, please register here.

Last month, when Attorney General Holder announced that discrimination on the basis of sexual orientation warranted “heightened scrutiny” under the Equal Protection Clause, and that §3 of the Defense of Marriage Act was unconstitutional under this standard, it was not immediately clear what level of scrutiny he was advocating. Maggie Gallagher, a leading opponent of same-sex marriage, accused Holder of “unilaterally declar[ing] that gay is like black, that orientation is now subjected to strict scrutiny.” Numerous commentators argued that, in fact, Holder was advocating an intermediate scrutiny standard. Courts that have applied heightened scrutiny to orientation-based discrimination have gone both ways. More important than the difference between strict and intermediate scrutiny, however, is the question of what mediating principle will guide courts’ application of equal protection to sexual orientation.

Holder’s letter to Congress begins to develop such a principle. He argues that §3 is unconstitutional because it was motivated by “disapproval of gays and lesbians and their intimate and family relationships—precisely the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.” It is this “disapproval” and “stereotype-based thinking” that, in Holder’s view, triggers the need for heightened scrutiny; he emphasizes that gays and lesbians have faced a long history of discrimination based on negative stereotypes, and that these “stereotypes . . . continue to have ramifications today.” Thus, Holder suggests, orientation-based equal protection law should incorporate an anti-stereotyping principle: The state cannot act in ways that reflect or reinforce widely-held stereotypes about the capacities or intimate and family relationships of sexual minorities.

Holder borrowed this anti-stereotyping principle from sex-based equal protection law. In cases such as U.S. v. Virginia (which Holder cites), the Court has held that the state may classify on the basis of sex when doing so serves to disrupt sex-role stereotypes, but not when it reflects or reinforces such stereotypes. “Real differences” between the sexes do not trump or negate this rule. The state may take real differences into account when seeking “to promot[e] equal employment opportunity” or “advance full development of the talent and capacities of our Nation’s people,” but such differences may not be used to justify state action that reflects or reinforces traditional conceptions of men and women’s roles.

Holder’s adaptation of this anti-stereotyping principle illustrates the potential of orientation-based equal protection law. An anti-stereotyping principle would enable courts to invalidate laws restricting marriage to different-sex couples without further stigmatizing relationships outside of marriage. It would protect sexual minorities across a wide range of contexts (including parenting, work, and health) that the marriage-as-a-fundamental-right approach fails to reach. Under an anti-stereotyping approach, “real differences”—such as the fact that same-sex couples cannot conceive children on their own—could not be used to justify state action that reflects or reinforces stereotyped conceptions of gay parents and their children. This way of doing gay rights would help protect the liberty of all gays and lesbians to develop their capacities and form families free from “the kind of stereotype-based thinking and animus the Equal Protection Clause is designed to guard against.”

Cary Franklin is Assistant Professor of Law at the University of Texas School of Law. You can reach her by e-mail at cfranklin@law.utexas.edu

Popular accounts and media commentary on the federal suits challenging the Defense of Marriage Act (DOMA) and California’s Proposition 8 focus largely on the inevitable march toward marriage equality.Implicit in such accounts is a claim about the impact of favorable court decisions on the LGBT rights agenda.After a district court victory in the Massachusetts DOMA case and the more recent announcement by Attorney General Holder that DOMA is unconstitutional under an appropriately heightened standard, the toppling of the federal ban seems imminent.After the district court’s decisive blow to Prop 8 in the Perry v. Schwarzenegger litigation and a Ninth Circuit oral argument before a generally receptive panel, commentators have focused on the impact of positive judicial intervention on same-sex couples in California

Judicial defeat, however, is a very real possibility.Indeed, that LGBT rights advocates discouraged the federal Prop 8 challenge suggests that a federal litigation campaign for marriage equality is a high-risk proposition.The built-in assumption is that a Supreme Court loss would be crushing for the movement.But perhaps the aftermath of a litigation loss is not all doom and gloom.Perhaps a loss might instead raise consciousness among lesbians and gay men, produce a sense of outrage, and compel movement members to press more urgently for change from elected officials and the public.Perhaps a loss would frame the issue in a way that aids fundraising efforts, brings more sympathetic elites on board, moves the issue to the top of some legislative agendas, and leads to complacency in the Christian Right countermovement.

The history of the LGBT rights movement sheds considerable light on the productive deployment of litigation loss.After Bowers v. Hardwick, in which the Supreme Court upheld Georgia’s anti-sodomy law against constitutional attack, LGBT rights advocates regrouped.They used the litigation loss to inspire outrage and strengthen resolve among constituents.The Bowers defeat increased grassroots mobilization, fundraising, and organizational founding, all of which proved vital to a stronger movement.Advocates also reworked their strategy to focus on state-based venues.Between the Bowers and Lawrence v. Texas decisions, at least twenty-one state advocacy organizations formed.Some achieved legislative victories, convincing state lawmakers to repeal sodomy prohibitions.Meanwhile, advocates urged state courts to use state constitutional law to provide protections for lesbians and gay men.Of the eleven states that decriminalized sodomy after Bowers, eight did so through the courts.Not only did state court activism result in on-the-ground victories, but it also laid the groundwork for Lawrence, in which the U.S. Supreme Court overruled Bowers and held anti-sodomy statutes unconstitutional.

But what does the post-Bowers experience tell us about the role of litigation in social change?The scholarly debate over whether – and if so, how – court-centered strategies bring about reform occurs largely on the terrain of positive judicial intervention.Scholars who argue that litigation is an ineffective vehicle for social reform point to several constraints that courts (and strategies reliant on courts) face.Court victories may fail to produce the promised change and may divert resources from more promising tactics.The competing and more optimistic account recognizes courts’ limited ability to directly produce reform but redeems litigation by focusing on its productive indirect impact.Court victories may lend legitimacy to a cause, generate elite support, mobilize constituents, and provide much-needed publicity.The mere act of litigating offers the possibility of judicial validation in a way that may inspire movement members, pressure adversaries, and increase a movement’s bargaining power.

But little attention is paid to litigation loss, with both camps generally assuming loss to be a decidedly negative and demobilizing event.My intervention, which focuses on how advocates themselves manage loss and reconfigure it for productive purposes, offers a more complicated and optimistic account of litigation loss.Crucially, it does so by drawing from both the optimistic and pessimistic accounts of litigation.A range of social movement tactics, aimed at a variety of audiences, may draw strength from litigation loss precisely because such loss demonstrates the limitations of court-centered change.In response to movement setbacks in one venue, advocates may look to more favorable venues and to different levels of government, and they may use the loss in court to frame appeals in these other venues.By arguing that a movement may actually win through losing, this account runs counter to most scholarly treatment of the role of litigation in bringing about reform.

My argument suggests that if the Supreme Court actually decides the merits of the Perry case and rules against the same-sex couples, movement advocates would use the loss for some productive purposes.They would draw on the decision to mobilize constituents and raise funds, and they would frame the decision in a way that places the issue of marriage equality squarely in front of state-level decision-makers and the public.Of course, how successful their efforts would be is an open question.

Future work must focus on the conditions under which litigation loss may aid a social movement.A loss in Perry might facilitate this important work.It would allow us to see how institutional constraints affect the ability to use loss productively.State constitutional amendments present obstacles that did not exist in the context of Bowers; rather, after Bowers, state court litigation and legislation continued to represent viable alternatives.With voter-approved constitutional amendments prohibiting recognition of marriage for same-sex couples, in the aftermath of a Perry loss advocates would have to convince the public to change the law through the initiative process, a mechanism that historically has been unfriendly to LGBT issues.Losses in the federal suits challenging DOMA might provide useful counterexamples.The courts are deciding an issue of federal law, unaffected in any direct way by state constitutional amendments; a loss would merely return the question to Congress, where advocates would press for change.Therefore, analyzing the Perry and DOMA litigations side-by-side might suggest some of the conditions that affect the productive use of judicial defeat.

Of course, I am not hoping for LGBT losses to satisfy my own scholarly interests.Rather, I believe proper constitutional interpretation would extend equal protection and due process principles to lesbians and gay men.In an ideal world, then, Perry would prove successful and yet still produce new material with which to assess social movement advocates’ use of litigation loss.After all, Christian Right advocates – the official proponents of Prop 8 – are defending the constitutional amendment in court; how they respond to loss in Perry could provide an illuminating case study on how social movement activists manage judicial defeat.

Douglas NeJaime is Associate Professor of Law at Loyola Law School (Los Angeles). You can reach him by e-mail at Douglas.NeJaime at lls.edu

For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned with individualism or through an antisubordination principle concerned with inequalities in group status. This Article uncovers a third perspective on equal protection in the opinions of swing Justices who have voted to uphold and to restrict race conscious remedies because of concern about social divisiveness which, they believe, both extreme racial stratification and unconstrained racial remedies can engender. The Article terms this third perspective on equal protection concerned with threats to social cohesion the antibalkanization perspective.

Employing this triadic model of equal protection, the Article demonstrates how Justice Kennedy reasons from antibalkanization values in the recent cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. There Justice Kennedy affirms race-conscious facially neutral laws that promote equal opportunity (such as disparate impact claims in employment discrimination laws) so long as the enforcement of such laws does not make race salient in ways that affront dignity and threaten divisiveness.

This Article’s triadic model identifies alternative directions equal protection doctrine might develop, and enables critique. A final section raises questions concerning the principle’s logic and application. Have those who interpret equal protection with attention to balkanization enforced the principle in an effective and evenhanded way? In this spirit, the Article concludes by suggesting that the antibalkanization principle could be applied to cases of concern to minority communities that do not involve challenges to civil rights laws (for example, government use of race in suspect apprehension).

Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale University. You can reach her by e-mail at reva.siegel at yale.edu

Over the past decades, the Court has systematically denied constitutional protection to new groups, curtailed it for already covered groups, and limited Congress’s capacity to protect groups through civil rights legislation. The Court has repeatedly justified these limitations by adverting to pluralism anxiety. These cases signal the end of equality doctrine as we have known it.

The end of traditional equality jurisprudence, however, should not be conflated with the end of protection for subordinated groups. The Court’s commitment to civil rights has not been pressed out, but rather over to collateral doctrines. Most notably, the Court has moved away from group-based equality claims under the guarantees of the Fifth and Fourteenth Amendments to individual liberty claims under the due process guarantees of the Fifth and Fourteenth Amendments. This move reflects what academic commentary has long apprehended — that constitutional equality and liberty claims are often intertwined. I refer to such hybrid equality/liberty claims as “dignity” claims. Based on whether the liberty or the equality dimension of the hybrid claim is ascendant, I call it the “liberty-based” or “equality-based” dignity claim.

The introduction of a third overarching term like “dignity” that acknowledges the links between liberty and equality is overdue. Too much emphasis has been placed on the formal distinction between the equality claims made under the equal protection guarantees and the liberty claims made under the due process or other guarantees. In practice, the Court does not abide by this distinction. The Court has long used the Due Process Clauses to further equality concerns, such as those relating to indigent individuals, national origin minorities, racial minorities, religious minorities, sexual minorities, and women. Conversely, the Court has used the equal protection guarantees to protect certain liberties, such as the right to travel, the right to vote, and the right to access the courts. We need to look past doctrinal categories to see that the rights secured within those categories are often hybrid rights. This Article focuses particularly on the liberty-based dignity claim, because I believe it offers a way for the Court to “do” equality in an era of increasing pluralism anxiety.

Kenji Yoshino is the Chief Justice Earl Warren Professor of Constitutional Law, New York University School of Law. You can reach him by e-mail at kenji.yoshino at nyu.edu

Often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a good thing. It insists, however, that its goodness be understood at a high enough level of abstraction that the state takes no position on any live religious dispute. American religious neutrality has over time become more vague as America has become more religiously diverse, so that today (with the exception of a few grandfathered practices) the state cannot even affirm the existence of God. This kind of neutrality is not the kind of neutrality toward all conceptions of the good that many liberal political theorists have advocated, but it is the best response to the enormous variety of religious views in modern America. It is faithful to the framers’ belief that religion can be degraded and corrupted by state support.

The Supreme Court has interpreted the establishment clause to mean that “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.” Accommodation of religion as such, beginning with the exemption of Quakers and Mennonites from the military draft, is unquestionably permissible.

It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as at war with itself, and propose to cast aside large bodies of settled establishment clause law.

The critics are right that neutrality is incoherent when it is understood at the highest possible level of abstraction. Yet almost no one regrets the state’s refusal to take a position on the metaphysical status of the Eucharist. Neutrality’s continuing appeal demands explanation.

The answer, which I will elaborate in my forthcoming book, Religious Neutrality in American Law: An Analysis and Defense (Harvard 2012), is that neutrality is available in many forms. One of the many ways that government can go wrong is to take a position on some question that, all things considered, it ought to abstain from deciding. The American law of disestablishment has from the beginning sought, for excellent reasons, to keep the state from adjudicating religious questions that are the objects of controversy in American society. That aspiration is both coherent and valuable.

Understanding the specific level of religious neutrality presupposed in American law dispels many apparent anomalies. For example, because religion is understood as a good at a high level of abstraction, it makes sense for the Court to continue to deploy one of the classic justifications for the religion clauses: the idea (which presupposes the value of religion) that religion can be corrupted by state involvement with it. I explain and defend the idea that a law must have a secular legislative purpose. I show why it makes sense to permit old, but not new, ceremonial acknowledgements of religion. I also explain why it is not unfair to give religion the special treatment that it now receives.

Andrew Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University. You can reach him by e-mail at akoppelman at law.northwestern.edu

In 2020, legislatures and courts addressing immigration will likely continue to struggle with two longstanding, fundamental questions: First, when is discrimination on the basis of race, ethnicity or origin acceptable, and second, when is affirmative action or some other accounting for previously disadvantaged groups warranted. Affirmative action is not normally thought of as part of the immigration debate, but Rogers Smith among others compellingly argues that one of the reasons undocumented Mexican immigrants should be treated with some consideration is the history of U.S. mistreatment of Mexicans and Mexican Americans, and interference in Mexico. Mexicans are hardly alone in this respect; 2012 will mark the 130th anniversary of the Chinese Exclusion Act of 1882. Ultimately expanded to all Asians, special restriction on Asian immigration was eliminated only in 1965.

Given that race is supposedly a suspect classification, it may seem odd that the scope of affirmative discrimination on the basis of race remains a pressing issue. But with modern immigration and national security politics, claims about the explicit and legitimate use of race in government action have reemerged with force. For an example of such explicit use of race that is allowed by law used in practice, consider whether police may rely on apparent Mexican ancestry in stopping suspected undocumented migrants. (For some reason, the question of using apparent Canadian ancestry as a basis for arrest never comes up.)

Use of race in immigration enforcement has been brought to the fore by SB1070, Arizona’s new and widely imitated state immigration law. Marc Miller and I contend in a forthcoming Duke Law Journal article that SB1070 is unconstitutional in many of its major provisions as a regulation of immigration reserved to the federal government, and in particular as a regular through state criminal law, but, like most commentators we do not question that the states can have some role under some circumstances in helping to enforce federal immigration law.

Kevin Johnson and I believe that SB1070 may be the first modern U.S. statute affirmatively authorizing racial discrimination in law enforcement. This is a contentious proposition, because it is the reverse of the claim of those who drafted and enacted SB1070 who insist it expressly prohibits racial profiling. Notably, Kris Kobach, an author of SB1070, former professor at the University of Missouri-Kansas City School of Law and now the Secretary of State of Kansas wrote in the National Review: “In four different sections, the law reiterates that a law-enforcement official ‘may not consider race, color, or national origin’ in making any stops or determining an alien’s immigration status. With this language, S.B. 1070 goes to extraordinary lengths to protect against racial profiling; most state and federal statutes do not include such special protection in their text. In addition, all the normal Fourth and Fourteenth Amendment protections against racial profiling will continue to apply.”

But Secretary Kobach’s quotation of the statutory language is not accurate. Unfortunately and mysteriously, it omits the key, operative language. What the law actually says is that police “may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona Constitution.” A.R.S. § 13-1509(C). Secretary Kobach, an experienced practitioner and scholar in this area, certainly knows that the exception is not boilerplate, but the functional part of the statute. As Toni Massaro, Carrissa Hessick, Marc Miller and I have noted, both the United States and Arizona supreme courts, interpreting the equal protection clauses of their constitutions, have held that race is a permissible factor in immigration enforcement. Apparent Mexican ancestry can be used as a factor to stop someone on suspicion of being undocumented. In 1975, the Supreme Court unanimously concluded that “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975). Similarly, the Arizona Supreme Court agrees that “enforcement of immigration laws often involves a relevant consideration of ethnic factors.” State v. Graciano, 653 P.2d 683, 687 n.7 (Ariz. 1982). For practical purposes, then, the “prohibition” of SB1070 and its progeny should read this way: “Race may be used in the enforcement of this section to the maximum degree permitted by the U.S. and Arizona Constitution.” But this is no Arizona innovation; the state only took advantage of power to discriminate offered by the Supreme Court.

We have the remarkable situation of discrimination that is simultaneously perfectly legal yet unspeakable, so odious that the very people who authorized it have to deny it. This is an unmistakable sign that this discrimination is contrary to modern social values. Perhaps by 2020, the Supreme Court may think it is safe to overrule this anomalous and queasy-making line of cases.

Gabriel "Jack" Chin is Chester H. Smith Professor of Law, Professor of Public Administration and Policy and Director, Program in Criminal Law and Policy at the University of Arizona, James E. Rogers College of Law. You can reach him by e-mail at jack.chin at law.arizona.edu

Can courts advance substantive equality? Michael Paris thinks so. His recent book, Framing Equal Opportunity: Law and the Politics of School Finance Reform, challenges the increasingly prevalent view of judicial impotence as exemplified by Gerald Rosenberg’s The Hollow Hope. Paris’s book describes how courts in two states—New Jersey and Kentucky—achieved significant reform of their states’ unjust school finance systems. He concludes that in both states the courts deserve credit for forcing social change, even if that change was slow in coming. In New Jersey and Kentucky, significant monies were shifted to poor school districts in response to judicial decisions.

This focus on state courts is an important corrective to the current progressive skepticism of the U.S. Supreme Court. Consider Michael Klarman’s view that the Court rarely challenges an existing national political consensus or Mark Tushnet’s advice to “take the Constitution away from the courts.” Progressive scholars have examined the Supreme Court and found it lacking, either because it does little more than rein-in political outliers or, more damningly, because its mostly conservative inclinations are only rarely punctuated by fits of progressivism.

State courts (and constitutions) are strangely absent from this narrative and from our taught constitutionalism. This is so despite Justice Brennan’s urging almost thirty-five years ago that progressives look to state constitutions for the vindication of individual rights. Our constitutional theories are weirdly parochial, obsessed as we are by the national Constitution of 1789 and by our current arguments over how to read it. But there are fifty other constitutions in this country. Those constitutions contain more substantive rights and protections than does the national one, and they have been revised more readily, more often, and more recently. Paris describes only two of the twenty-six successful state school finance reform decisions, many of which have been based on state constitutional rights to education.

How judicially-recognized constitutional rights get “translated” into progressive politics is the topic of Paris’s book. He argues that state supreme courts are central actors in the legal mobilization necessary for an equality-forcing politics. Emily Zackin, whose recent dissertation is about the long tradition of positive rights in state constitutions, also argues that constitutional politics in the states is importantly different from constitutional politics at the national level. She argues, like Paris, that state constitutional politics is an extension of normal politics; the fetishization of “higher law” that sometimes manifests itself as constitutional reverence simply does not exist at the state level. State citizens are perfectly willing to amend, override, and otherwise fight about the content of their constitutions. The result has been a robust local constitutionalism that is more attentive to substance and less preoccupied with methodology than is our anemic national discourse.

Richard C. Schragger is Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at virginia.edu

America’s constitutional law, its rights tradition in particular, is often said to reflect Americans’ fear of an over-active and overbearing state. Thus, America’s Constitutional rights are widely thought to restrain the state in order to protect citizens from the state’s power and potential for tyranny. Constitutions of other nations all over the world also contain these limits on government, but they include a different kind of right as well. These rights (sometimes called positive rights) obligate government to intervene in social and economic life, promoting equality rather than simply procedural fairness. They offer protection not from government itself, but from market capitalism and its consequences. The Belgian Constitution, for instance, declares that everyone has a right to a free education, and the South African Constitution includes the right to medical care. The text of the U.S. Constitution contains no such explicit guarantees, and the Supreme Court has consistently declined to interpret the Constitution to include them. Many have concluded that America simply lacks this other kind of constitutional right, and that Americans have been willing to commit to welfarist policies only at the level of statutory law.

The problem with this conventional account of American constitutional rights is that it takes the history of the federal Constitution and the federal Supreme Court to be the only one worth considering. The great majority of commentators on American rights have leapt effortlessly, and indeed unconsciously, from the assertion that the federal Constitution lacks (judicially recognized) positive rights to the conclusion that the United States lacks positive rights, at least at the constitutional level. It is this error that I endeavor to correct through my study of state constitutional movements.

In my current book project, and in a related article in Studies in American Political Development, I demonstrate that American history is, in fact, replete with successful campaigns to create constitutional rights to protective and redistributive governance, but that these rights appear in U.S. state constitutions. Throughout the nineteenth and twentieth centuries, organized movements used state constitutions in order to force government to protect people from market capitalism and its attendant risks. As a consequence, these documents include many explicit rights to protective and interventionist government. Not only do state constitutions contain such textual mandates, but many of their champions explicitly argued that intrusive government and the risks government posed to private property and individual liberty were not the most salient or urgent threats to the well-being of every citizen. These rights movements insisted that “freedom” from government intervention and protections for private property would mean little, especially to particularly vulnerable people, unless government also provided protection from more immediate, non-governmental dangers—like economic inequality, dangerous working conditions, and environmental catastrophe.

These rights movements successfully created the kind of constitutional rights that Americans are not supposed to have. They also used state constitutions for reasons that most theories of constitutional politics have missed. The classic explanation for the emergence of constitutional rights holds that people in power create these rights to entrench their policy preferences and forestall change. Thus, this explanation for the emergence of constitutional rights describes movements for new rights as fundamentally conservative. The origins of the rights in state constitutions, however, were often quite different. The advocates of many of the protective and redistributive mandates in state constitutions did not want to crystallize existing political arrangements. Instead, they hoped to re-write the rules of politics and transform the status quo, building a social safety net through constitutional as well as statutory law.

Emily Zackin is a doctoral student in the Department of Politics at Princeton University. You can reach her by e-mail at ezackin at princeton.edu

Everyone knows that school desegregation is dead. The massive economic and demographic changes of the past sixty years, combined with many public policies, created racial ghettos. Segregated housing patterns and segregating public schooling marched hand-in-hand.

For a brief time, federal courts were responsive to demands for desegregation. But then in Milliken the Supreme Court drew the line at the crabgrass frontier. Court-supervised desegregation continued for a decade or so, but it was largely confined to city limits. Over the course of the 1990’s, the Supreme Court prodded lower courts to withdraw from the field, and withdraw they did. Parents Involved was simply the coup de grace. Racial classification, not racial subordination, was really the evil to be eradicated all along. Attentive scholars now talk of “integration fatigue” among minority groups, and even erstwhile supporters of desegregation say that this particular game is over.

But now come two important books from the legal academy urging us not to give up the ghost: Martha Minow’s In Brown’s Wake: Legacies of America’s Educational Landmark (Oxford, 2010), and James E. Ryan’s Five Miles Away, A World Apart: One City, Two Schools, and the Story of Educational Opportunity in Modern America (Oxford, 2010). Both encourage us to keep thinking about what integration means and why it still matters. Both are rife with eloquent lines about the deep connection Brown forged between the quest for racial justice, on one hand, and a capacious vision of public education tied to equal citizenship and belonging, on the other. Both offer impressive reviews of social scientific research documenting the many benefits of cross-race/cross-class desegregation, indeed, for everyone, but particularly for poor, minority kids in the urban centers. In short, both books teach us much about why we should continue to fight. However, it seems to me that neither one adequately addresses the most vexing question, which is not why to fight, but how we might.

Minow’s book takes us on a whirlwind tour of “the enormous influence of Brown in schools beyond race.” Brown’s endorsement of equal opportunity “transformed the treatment of immigrants, students learning English, girls, students with disabilities, and poor students in America’s schools.” It transformed “religion in schools, school choice, and social science evidence about schooling.” Along the way, Minow argues for a revival of “the racial integration ideal.” Integration means “both the side-by-side instruction of students of different races and the creation of school communities with a sense of common purpose and membership bridging different identities, histories, and past opportunities” (p. 2). Authentic integration was always in some sense part of the larger battle against white supremacy (p. 30). For Minow it is a worthy goal in its own right, and not merely one possible means to improved educational opportunity. Minow’s book does not address practical questions about how to get from here to there, however. Ryan, by contrast, does offer an answer to the “yes, but how?” question. Ryan’s answer is interesting in certain respects, but it is also a lifeless one that can’t possibly inform oppositional politics.

“Equal educational opportunity is a foundation principle in our society,” Ryan begins, yet “educational opportunities are far from equal. [They] too often depend on where students live, on how much money their parents earn, of the color of their skin” (p. 1). He then charts the history of school desegregation law and the emergence in the early 1970’s of what he aptly calls “Nixon’s Compromise.” Neighborhood schools were sacrosanct. Poor and minority kids would remain in the cities and would not have access to the suburban schools, but efforts would be made to improve education in city schools (p. 5). Ryan then goes on to review several other major educational reform efforts, including school finance reform, school choice (vouchers and charters), and the now dominant testing and accountability regime. All of these efforts took Nixon’s Compromise for granted. Ryan concludes that “separate will not be equal,” that “separating the poor and politically powerless in their own schools and districts is antithetical to the idea of equal educational opportunity,” and that “the single best solution” to the problem of educational inequality “is greater socioeconomic and racial diversity with each district and school. Integration. . .brings both direct and indirect benefits that cannot be replicated by other reforms” (p. 278; p. 304).

Ryan directly confronts the question of seemingly insurmountable practical obstacles. “Why waste time,” he asks, “fretting about the impossible”? (p. 15). In his concluding chapter, he suggests that change may be coming, “not from legislatures or courts, but from demographics and changes in attitudes about the most desirable places to live and about diversity itself.” He states that

. . .these demographic changes are bringing racial and socioeconomic diversity to the suburbs and more middle-income families back to the city. With these changes come greater opportunities for racial and socioeconomic diversity with schools and school districts. Attitudes and behaviors among young adults aged eighteen to twenty-nine push in the same direction. This generation has embraced diversity as none has before it, which bodes well for future housing patterns (p. 275).

A more favorable political context for school desegregation may be on the way, and so “[a]dvocates. . .should be thinking now about how to nudge these changes in productive directions.” But then it turns out that “advocates” don’t have much to do in Ryan’s account. Ryan proceeds to give us a list of housing and school policy ideas and advice for “middle class suburbs,” “poor suburbs and cities,” “school districts,” and “school district leaders,” and the like. It is these governmental entities and officials that should do this, and should do that. Worse still, in treating demography as opportunity and nudging things in the right direction, Ryan’s overarching theme is that these officials should be very careful to please, so as to hold on to, middle-class families, especially white middle class families. Finally, Ryan is reasonably certain that whatever the process of change might look like, it is unlikely to include courts. Courts have not been reliable partners in the past, and they are even less likely to be helpful in the future.

Like Ryan, I’ve been thinking about the political and legal viability and feasibility metropolitan-wide school desegregation. I’ve recently started working on a book about reformers’ ideologies and strategies in Sheff v. O’Neill, the Connecticut school desegregation case. I think that a close study of this project can yield some new insights about this all-but-lost cause. I plan to structure part of this inquiry as a conversation of sorts between the Sheff reformers’ vision and practices, on one hand, and Derrick Bell’s various criticisms of integrationism and school desegregation litigation, on the other hand. What I am in search of here are some unexamined, alternative possibilities for argument and action.

Sheff

A coalition of national and local civil rights lawyers filed Sheff in1989. They claimed that Hartford school children were harmed by racial isolation and the concentration of poverty. At this time, ninety-one percent of Hartford students were members of racial minority groups, and, by one commonly used measure, 67% were poor. State laws were implicated in the creation and maintenance of these conditions, the lawyers argued, and state officials had sat idly by while these conditions emerged and worsened. The state was depriving the children of their positive right to substantial equal educational opportunity under the state constitution. In 1996, a closely divided Connecticut Supreme Court more or less accepted the lawyers’ central argument. It held that the state constitution “requires the legislature to take affirmative responsibility to remedy segregation in our public schools, regardless of whether that segregation has occurred de jure or de facto.” The court chose its words carefully. It did not say that there was a right to integration, but only that there was a right to a substantially equal educational opportunity that was not “substantially impaired” by racial isolation and poverty. The ensuing fourteen years have witnessed several reform laws, five trips back to court, two consent agreements (one in 2003 and another in 2008), and some, but not much, actual school desegregation.

Let me briefly share some preliminary thinking about the possible virtues and defects of the Sheff project.

Potential Virtues:

Bell’s famous “Serving Two Masters” piece offered three central criticisms of traditional school desegregation litigation through the mid-1970’s. Bell has reiterated and elaborated on these points ever since. The Sheff effort was to some extent responsive to all three points:

(1) Bell criticized NAACP and LDF lawyers for claiming the authority to speak for all African-Americans in litigation when in fact competing goals and desired outcomes had emerged within African-American communities. Traditional reform litigators often didn’t care much about representing actual, active clients or constituents. In Sheff, the lawyers worked very hard to mobilize and engage in dialogue with clients and constituent activists and groups. This process of community engagement proceeded for over two years before the case was even filed. It was often hard to sustain activism thereafter, but a political prong of the effort still survives, and any such activism within oppressed communities should be seen as valuable in its own right.

(2) Bell criticized the NAACP and LDF lawyers’ commitment to “unconditional” integrationism and by-the-numbers racial balance remedies. School desegregation might be, or it might not be, the best means to what Bell said that the central goal should be—a goal he called “educational improvement.” More fundamentally, for Bell, liberal integrationism made far too much peace with the racism it purported to fight. The liberal litigators seemed to misunderstand the nature of racism and what it would really mean to oppose it effectively, or, perhaps, honorably. In Sheff, reform lawyers and activist placed “equal educational opportunity,” broadly understood to include access to various kinds of “resources,” front and center. Integration was simply the very best means to that end.

(3) Bell criticized the NAACP and LDF lawyers for their legalism, over-reliance on courts as effective engines of change, and neglect of the potential ancillary and indirect positive political effects of litigation activity. The Sheff lawyers and reformers believed, rightly, that they could not possibly achieve their goals without litigation and, probably, without a favorable court decision, but they also knew that court intervention and the implementation of any policy changes depended on political mobilization and political support. They did a reasonably good job on the political side outside of court, under very difficult conditions [more on the particular forms that their political activities took below].

In addition, we can note that Bell’s work has never paid much attention to the potential malleability of legal norms and doctrines or the creative processes through which lawyers and activists might create new legal meanings. In court, the Sheff reformers had to go from needs to rights. This is the project’s greatest success—a stunning transformation of state constitutional norms—even if those norms are, at the moment, for the most part unenforceable. This “success” depended on prior developments in state constitutional law (the state’s school finance case) and a brilliant analogy between those prior developments and this broader attack on racial isolation and concentrated poverty. The Connecticut high court’s opinion in Sheff is the only living example in our history in which a court rejects de jure/de facto distinction. It dispenses with the smokescreen of the state action doctrine (Tushnet, 2008) and imposes an ongoing duty on the state government to pay attention segregation in fact and to keep trying to ameliorate it. [It can be viewed as a return to, and expansion of, Powell’s Keyes opinion. Sure, Powell’s motives were probably bad, and, sure, what he would have given on “violation” he would have taken away on “remedy,” but in retrospect an ongoing governmental duty to care about de facto school segregation would have been a better way to go.]

Sheff is replicable in any state in which the courts have endorsed some sort of right to adequate education, or equal educational opportunity, in the context of school finance litigation. But of course whether it is replicable depends on much more than legal theories or doctrines.

Ideological and Strategic Questions

I see at least two major ideological and strategic questions about the Sheff project, and, by extension, any future state-level efforts along these lines. Each of these questions involves continuities between Sheff and the older civil rights approach to school desegregation, and each one is informed by Derrick Bell’s evocative criticisms:

(1) The first involves the Sheff project’s animating conception of race and racial justice. The Sheff reformers were and are racial liberals. They fully embraced the dominant, liberal post-WW II paradigm about “race relations” (a la Myrdal’s American Dilemma). They saw race as an irrational category that was deeply pernicious and stigmatizing Guinier and Torres (2002) have called this “race as irrational stigmatization.” As historian Thomas Sugrue recently put it, this view rendered racism “as an individual moral and psychological problem: one in the hearts and minds of misguided whites” (2008, p. xxvi). Irrational bias and prejudice could be fought through rational argument and evidence (e.g. in the form of “social science statements” in court or “community education” programs), combined with policies that fostered “inter-group contact” taking place on “equal status terms.” The Sheff reformers remain the children of Gordon Allport. Both their case in court and the public conversation it fostered were laden with damage imagery about “multiple layers of harm” to poor, minority children. Arguably, to focus on the harm done to children is to focus on the consequences of a wrong, and not on the practices that are wrong in themselves (Balkin, 2001, p. 52-53; MacKinnon, in Balkin 2001). Is there a fundamental difference between being wronged and being harmed?

Race as irrational stigmatization also fails to mobilize on the basis of the positive, political side of racial identity—the varied and valued cultural forms that have evolved among minority groups in response to racial oppression and the existential liberation entailed in struggles founded on positive racial consciousness and racial solidarity. Racial solidarity as a resource for political mobilization seemed to be outside the purview of race as irrational stigmatization. Finally, one has to wonder whether race as irrational stigmatization isn’t inadequate to the central form that racial subordination takes today—which seems to be grounded in resource inequality (see Brooks, 2010), and not so much in white antipathy or prejudice. Resource inequality today seems to be as much a cause as it is a consequence of racial discrimination. Changing demographic patterns and changing white attitudes and values (James Ryan’s answer) seem to be quite compatible with ongoing, institutionalized processes of racial subordination. But here one runs headlong into the demands of liberal legal doctrine and legal forms—how could the case be made out in court without the liberal conception of race and a portrait of the damage done to the poor (pitiful) children?

(2) Another deeper continuity between traditional civil rights efforts and the Sheff project involved the specific forms that political action took, and how the Sheff reformers saw the role of law and courts in a process of change. The Sheff reformers admirably sought to engage in ongoing political work in support of their litigation. They envisioned a causal chain of change that ran from politics, to a compelling legal case and court victory, and then to judicial mandates that policymakers would have to obey. Soft political support would create a favorable environment for this entire process. This implicit theory of change was evident, first, in reformers’ steadfast refusal (until 2001) to say anything specific about the particular desegregation policies (or “remedies”) that they wanted to see enacted (that is, to say what they were really fighting for), and, second, in the moderate and educational forms of politics that marked their political activities after they filed the case. The judicial victory eventually came, but the judicial mandates never did.

The Sheff project’s forms of political action were moderate and educational. Their politics was decidedly not a politics of confrontation and protest. Derrick Bell made fun of this “educational” approach to the politics of race—this faith in empathy and enlightenment—in “Racism’s Secret Bonding” (1991, Chapter 8). “Racial data storms” don’t work, at least not unless they are combined with confrontation and protest. My interviews with lawyers and clients revealed that the activist clients were more inclined toward political engagement than were the lawyers (although the lawyers favored and approved of moderate forms of political engagement as well), but that protest forms were not much considered or discussed. Confrontational politics can’t simply be wished into being, of course, but confrontation will not be tried unless it is first considered as a strategic option.

The Sheff case touches on many broad themes of interest to participants in the Constitution in 2020 project, including state constitutionalism and positive rights; legal mobilization theory, and popular and/or democratic constitutionalism; state action doctrine; racism and racial justice; and the evocative work of Derrick Bell.

References:

Balkin, Jack, ed. 2001. What Brown v. Board Should Have Said. New York, NY: New York University Press.

The Constitution in 2020 is a companion website to The Constitution in 2020 (Oxford University Press 2009). Here you will find ten sample chapters from the book, essays about the future of the U.S. Constitution, discussions of current constitutional issues, a bibliography and resources for further study.